Constitutional battle brewing after telecom immunity invoked

The government on Friday moved to dismiss the ongoing warrantless wiretap …

The government has invoked the retroactive immunity provision of the recently-passedFISA Amendments Act in a motion to end the ongoing lawsuits against telecoms charged with complicity in the National Security Agency's controversial program of extrajudicial wiretapping. The Electronic Frontier Foundation, which is spearheading the litigation, promises to fight the immunity clause on constitutional grounds—and has given Ars Technica a sneak preview of the argument it plans to make.

The government's motion to dismiss (PDF), submitted to California district judge Vaughn Walker on Friday in anticipation of a hearing scheduled for December 2, was accompanied by Attorney General Michael Mukasey's public certification (PDF) that the defendant telecoms were immune from civil liability under the FISA Amendments Act. Mukasey also filed a more detailed, classified certification in camera, providing the judge with the specific grounds for the assertion of immunity.

Five paths to immunity...

There are 50 ways to leave your lover, but only five ways for a company to be entitled to immunity under the FISA Amendments Act. Three are versions of "they provided assistance, but it was lawful under the statutes in effect at the time." Another is not to actually have provided any assistance. The final, and most contentious, is the new form of retroactive amnesty provided by the law: The attorney general can assert that the company provided assistance calculated to prevent a terrorist attack on the United States in the wake of 9/11, pursuant to a written directive from a high administration official assuring them that the surveillance had been authorized by the president and determined to be legal.

Mukasey's certification says only that one or more of these excuses applies to all the defendants in the consolidated wiretap litigation, asserting that the public disclosure of any more specific information about the grounds for immunity "would cause exceptional harm to the National Security of the United States." It's therefore impossible to know which of the defendant telecoms provided assistance, or under what circumstances.

The attorney general also denied EFF's contention that, in addition to narrowly targeted eavesdropping on suspected Al Qaeda affiliates, there was any broader program of "dragnet collection on the content of plaintiffs' communications." Precisely what this latter contention means is unclear: As Ars noted last week, there is some legal controversy over when, precisely, the "collection" of a communication takes place. Therefore Mukasey's denial could mean that, despite the evidence provided by AT&T whistleblower Mark Klein, there was no blanket interception of communications for keyword analysis. But it could as easily mean that the attorney general does not believe that whatever form of "inside the box" analysis of those communications NSA conducted counts as "collection" for the purposes of FISA or the Fourth Amendment.

... and four arguments against it

Does that mean the corpulent contralto should start practicing her warm-up scales? Perhaps not: EFF attorney Cindy Cohn has a four-part constitutional harmony for Judge Walker to hear before he strikes the set. In an interview with Ars Technica last week, she outlined the argument she plans to present.

Contra the government's frequent assertions that the NSA's "Terrorist Surveillance Program" was targeted only at communications that were either wholly international or "one-side-foreign," Cohen plans to assert, on the basis of whistleblower Klein's evidence and more recent press reports, that the NSA also broadly intercepted wholly domestic communications. Though, as noted above, Mukasey appears to deny this, we do now know that the program first disclosed by the New York Times in 2005, and scrutinized in congressional hearings, was only one component of a far broader spying effort, elements of which were apparently so controversial that high-ranking Justice Department officials threatened to resign if it was not halted. The Supreme Court ruled in 1972 that domestic national security surveillance is subject to robust Fourth Amendment limitations, while the rules for foreign intelligence collection may be more lax.

Similarly, the group plans to argue that the scope of the surveillance conducted went beyond the bounds of the FISA Amendments Act's grant of amnesty for surveillance "designed to detect or prevent a terrorist attack, or activities in preparation for a terrorist attack, against the United States." Like the previous argument, this line of attack relies on a hybrid of constitutional and statutory claims. Courts generally follow a policy of constitutional "avoidance"—meaning that if there are two ways to read a statute, and one of them would violate the Constitution, they'll assume it was meant to be interpreted the other way. Here, EFF wants to argue that a reading of the statute that covered all the NSA surveillance would be unconstitutionally broad, and so it must be more narrowly constructed. One potential wrinkle here is that Judge Walker might well agree with this Fourth Amendment analysis as it applies to the government's conduct, but reject the claim that it presents a barrier to civil immunity for the telecoms.

Cohn explained that EFF is also developing a separation of powers argument rooted in the discrete spheres of responsibility the Constitution assigns to Congress and the judiciary under Article I and Article III. In effect, the group wants to claim that with the FISA Amendments Act, which makes immunity hinge on presidential authorizations and attorney general certifications, the legislature has illegitimately usurped a judicial power—deciding the outcome of pending litigation—and assigned it to the executive branch. This argument comes with a corollary due process claim: To wit, the plaintiffs have a corresponding right to have their case decided by a judge, not by the President or Michael Mukasey.

Finally, Cohn told Ars, she will make an independent argument against the secrecy provisions of the FISA Amendments Act, grounded in the traditional authority of courts to determine the disposition of their own records. While there is nothing new about the practice of filing sealed in camera documents when classified activities are at issue, Cohn called the Act "unprecedented" in its grant of executive power to "gag the courts," noting that if Judge Walker were to dismiss the lawsuit, he would be barred from explaining publicly precisely why he had dismissed it.

The EFF now has until October 16 to file a brief in opposition to the government's motion to dismiss. The government and the telecoms will have a chance to reply to that brief by November 5, and then EFF will get an opportunity to respond to those filings by November 20. The final showdown is slated for the morning of December 2.